Question of reasonable basis brought to the fore

Every time a solicitor signs off on a pleading, he or she puts their name to the fact that the claim has a reasonable basis. It is something many stake their professional reputations on, but the issue is rarely agitated in the public domain.

Yet earlier this month, when James Ashby’s sexual harassment claim against former speaker
Peter Slipper
returned to the Federal Court, the issue was centre stage.

Mr Slipper’s former lawyers had accused Mr Ashby’s solicitor, Michael Harmer, of having an insufficient basis to make allegations contained in the originating process. This was brought as part of Mr Slipper’s abuse of process claim relating to two explosive sections of the Ashby pleading, which were later removed.

Mr Ashby’s claim, filed in the Federal Court on April 20, included allegations that Mr Slipper once had a relationship with a former junior staffer, which a senior Howard adviser allegedly tried to cover up. The second contentious area was the inclusion of abuse of travel entitlements as part of the breach of contract claim brought by Mr Ashby against the ­government.

Mr Ashby claimed he saw Mr Slipper hand over a blank Cabcharge voucher while he was working for him. Both allegations were later removed.

In early June, Mr Slipper accused his former aide of bringing the claim for an improper purpose to damage him personally and bring down the government. He also accused Mr Harmer of conspiring with Mr Ashby and failing to have a reasonable basis to include some of the allegations. Mr Harmer disputed this; he declined to comment this week.

Justice Steven Rares made several comments about the issue, including that the proceedings initially contained criminal allegations concerning Mr Slipper that were later dropped and “I would have thought that it was calculated to put people’s backs up". Justice Rare’s comments raised questions about what is needed to have a reasonable basis to sign off on a pleading.

Middletons partner Gerard Phillips said: “Every time you sign a pleading, so either a statement of claim or a defence or a cross claim, the practice rules require you to have informed yourself of the facts and have proper instructions from a client, and based on those instructions I’m satisfied that within the law there is a proper cause of action founded within these particulars," he said.